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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> MacDonald, Re Application For Judicial Review [2001] ScotCS 33 (13 February 2001)
URL: http://www.bailii.org/scot/cases/ScotCS/2001/33.html
Cite as: [2001] ScotCS 33, [2001] LLR 655

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OUTER HOUSE, COURT OF SESSION

 

 

 

 

 

 

 

 

 

 

OPINION OF LADY PATON

in petition of

MRS EILEEN MACDONALD

Petitioner;

for

Judicial Review of a decision of the Western Isles Licensing Board

 

 

________________

 

 

Petitioner: Agnew of Lochnaw, Q.C.; Currie Gilmour & Co

Respondents: S.L. Stuart; MacRoberts

13 February 2001

Licensing Board's refusal to grant extension of hotel's licensed hours

[1] The petitioner is a hotelier who runs the Doune Braes Hotel, Carloway, Isle of Lewis. By application dated 9 May 2000 she sought extensions of the hotel's licensed hours from 11 p.m. on Saturday to 1 a.m. on Sunday, and from 2.30 p.m. to 6.30 p.m. on Sunday. The petitioner had previously been granted an extension from 2.30 p.m. to 6.30 p.m. on Sunday during 1996-97, 1998-99, and 1999-2000. She had been refused such an extension in 1997-98.

[2] On 14 June 2000, the Western Isles Licensing Board (the respondents) refused the application. In their Statement of Reasons dated 5 July 2000 they noted inter alia that no letters of objection to the application had been received, and that there were no objections from the Chief Constable. They continued:

"7. The agent for the applicant addressed the Board firstly regarding the application for a Regular Extension of Permitted Hours for the period from 11 p.m. Saturday to 1 a.m. Sunday. The agent advised the Board that the applicant had previously been granted a Regular Extension to 11.30 p.m. on Saturday night. The agent advised the Board that the applicant required the extension of permitted hours sought in order to facilitate the operation of a special mini-bus service provided by the applicant for customers of the Hotel. The agent explained that the applicant operated this mini-bus service in order to drive customers to their homes at the end of permitted hours. The agent advised that Hotel customers came from all over the locality of the surrounding premises from Callanish in the south up to Barvas in the north. The agent advised that the applicant found it necessary to provide said mini-bus service and that it often took two or three trips of the mini-bus in order to deliver all customers home. The agent advised that this operation could last until 1 a.m. and that the extension was sought to allow customers to lawfully remain in the premises until said operation could be completed. The agent also advised the Board that the Regular Extension requested would also be beneficial to holiday makers and would be consistent with Regular Extensions granted by the Board in other areas of the Western Isles.

8. The Chairman of the Board then adjourned the Board in order to consider the application.

9. On returning the Chairman called for the Board to vote on the application for a Regular Extension of Permitted Hours from 11 [p.m.] Saturday to 1 a.m. Sunday. The vote was unanimous in refusing the application. The Board then unanimously approved granting a regular extension of permitted hours until 11.30 p.m. Saturday.

10. The Board considered the submission made on behalf of the applicant in support of this extension. It considered the application under reference to the relevant statutory provisions in section 64(3) and (4A) of the Licensing (Scotland) Act 1976 and section 47(1) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990. It determined to refuse the application for this extension on the ground that it was not satisfied that there was a need in the locality in which the hotel is situated for the extension and was not satisfied that it was likely to be of such benefit to the community as a whole as to outweigh the detriment to the locality in terms of said section 47(1)(a) and (b). Further, it did not consider that it was desirable, having regard to the social circumstances of the locality, to grant the application for this extension in terms of section 64(3) of the 1976 Act.

The Board was of the view that the submission to the effect that the extension was justified in order to assist the operation of a bus service to take customers home at the end of the evening did not evidence or demonstrate a need in the locality of the premises, namely Carloway and the surrounding locality as described by the agent for the applicant in his submission requesting such an extension. The Board acknowledged that the applicant was entitled to operate the bus service and allow customers to remain in the hotel until this operation was completed as long as alcohol was not being sold. Accordingly, the Board was not satisfied that there was a need in that locality for the extension.

The Board also took account of its general knowledge and experience of the locality. In that area, and throughout the Isles of Lewis and Harris it is well known that there is a strong tradition and body of public opinion in favour of observance of the Sabbath and which is practised. It involves recognition of Sunday as a day of rest free of commercial activity including, so far as possible, the operation of licensed premises. The practice of Sabbath observance is a distinctive part of the religious, social and cultural life of these islands. The Board was of the view that such commercial activity was considered to be contrary to the Sabbath observance in Lewis and Harris whilst it was acknowledged that in the islands of North and South Uist, Benbecula and Barra such commercial activity on Sundays is not considered to be contrary to the Sabbath observance. In these circumstances, the Board concluded that it would not be desirable to grant a regular extension to 1.00 a.m. on Sunday. Further, it was of the view that, in the light of the practice of Sabbath observance, whatever benefit there might be to the community in having the premises open during the extended period sought did not outweigh the detriment to the locality as a result of activity associated with the operation of the extension, in particular, customers arriving and leaving the premises, which it considered would be inimical to Sabbath observance.

For the foregoing reasons the Board resolved unanimously to refuse the application for regular extension of permitted hours from 11.00 p.m. on Saturday to 1.00 a.m. on Sunday.

11. The Chairman of the Board then invited the agent for the applicant to address the Board in relation to the application for a Regular Extension of Permitted Hours from 2.30 p.m. until 6.30 p.m. Sunday.

12. The agent for the applicant advised the Board that the extension requested had been previously granted by the Board and that the extension requested was of particular assistance during the summer period as the hotel was the only place on the west side of the Island of Lewis which made such provision for tourists. The agent for the applicant advised that the previously granted Extension of Permitted Hours had been in operation without causing any difficulties and that no objections to the application had been received. The agent concluded by asking the Board to grant the extension sought.

13. The Chairman of the Board thereafter adjourned the Board in order to consider the application.

14. On returning the Chairman called for the Board to vote on the application for a Regular Extension of Permitted Hours from 2.30 p.m. to 6.30 p.m. Sunday. The vote was 7 votes to 3 against granting the request.

15. The Board considered the submission made in support of this extension on behalf of the applicant. It considered the application under reference to the relevant statutory provisions, namely, section 64(3) of the Licensing (Scotland) Act 1976 and section 47 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990. The Board determined to refuse the application on the ground that it did not consider that it was desirable, having regard to the social circumstances of the locality, to grant the extension in terms of said section 64(3) of the 1976 Act and that it was not satisfied that it was likely to be of such benefit to the community as a whole as to outweigh the detriment to the locality in terms of section 47(1)(b) of the 1990 Act.

The Board acknowledged that such an extension had previously been granted and that there had been no problems reported and no objections received in respect of the current application. It acknowledged that in relation to the period for which the extension was sought, there was demand and that the hotel would be catering for tourists and any local people who wished to avail themselves of the facility.

However, the Board took account of its local knowledge and experience of the locality of Carloway and the surrounding locality as described by the agent for the applicant in his previous submission, in which there is a strong tradition and body of opinion in support of Sabbath observance, which is practised, involving Sundays being free from commercial activity including, so far as possible, the operation of licensed premises, all as explained in relation to the extension sought until 1.00 a.m. on Sunday. This practice is a distinctive part of the religious, social and cultural life of the locality and the islands of Lewis and Harris. In these circumstances, the Board concluded that it would not be desirable to grant a regular extension between the hours of 2.30 p.m. and 6.30 p.m. on Sunday. Further, it was of the view that in the light of the practice of Sabbath observance, any benefit to the community, in having the hotel open for tourists and locals over the extended period sought, did not outweigh the detriment to the locality as a result of activity associated with the operation of the extension which it considered would be inimical to Sabbath observance.

For the foregoing reasons the Board resolved by a majority of 7 votes to 3 to refuse this application for a regular extension of permitted hours from 2.30 p.m. to 6.30 p.m. on Sunday."

Petitioner's submissions

Natural justice

[3] Counsel for the petitioner submitted that both the extensions sought had been refused on the basis of observance of the Sabbath, with a further reason (failure to establish need in the locality) being given in respect of the Saturday-into-Sunday extension. Yet until the board issued their Statement of Reasons, there had been no indication that Sabbath observance was a factor which might be taken into consideration or to which any weight might be attached. On the contrary, during previous years (1996-97, 1998-99, and 1999-2000) the board had granted the petitioner extensions from 2.30 p.m. to 6.30 p.m. on Sunday. There had been no difficulties and no objections connected with previous Sunday extensions. The applicant had received no notice that the board might take such a point. The matter had not been mentioned or discussed at the hearing. No objections had been lodged by potential objectors such as neighbours, the local community council, or any church in the vicinity. In founding upon Sabbath observance without having given the petitioner notice that such a factor might be in issue, and without having given the petitioner's agent an opportunity to lead evidence if so advised, or at least to address the board on the matter, the board had acted in breach of natural justice. Reference was made to Tomkins v City of Glasgow District Licensing Board, 1994 S.L.T. 34; Freeland v City of Glasgow District Licensing Board, 1979 S.C. 226, 1980 S.L.T. 101.

Wednesbury unreasonableness

[4] The petitioner had given the board two reasons for seeking an extension of hours from 11 p.m. on Saturday until 1 a.m. on Sunday. Firstly, the petitioner wished to cater for those customers who had to wait their turn for the mini-bus service home. Secondly, the petitioner wished to cater for holiday makers. The board had dealt with the first reason, stating that they did not consider that any need within the meaning of section 47 of the 1990 Act had been demonstrated. However they had failed to consider and deal with the second reason, namely the holiday-makers. They had accordingly left out of account a factor which should have been taken into account. Further in their deliberations and their decision they appeared to have taken into account factors for which there had been no material and no evidence before them. In particular there had been no material before the board from which they could have concluded that there would be detriment to the locality in terms of section 47. "Detriment to the locality" meant a prejudicial effect on the amenity of the area, affecting the people in the area. However the hotel premises were set on their own, in an isolated situation in the country. There had been no evidence before the board suggesting that the arrival and departure of customers would trouble anyone in the locality. While the board were entitled to apply their general knowledge and experience to material before them, in the present case there had been nothing before the board relating to detriment to the locality: cf. Singh v City of Glasgow Licensing Board, 1998 S.C. 830, at pp.831E-F, 833B-G. In the present case, no objection had been lodged; nor had there been any point raised by the board at the hearing about detriment. In view of the lack of objections, and the board having raised no point about Sabbath observance, or traffic considerations, or noise or similar matters affecting amenity, the board appeared to have taken into account matters for which there was no material or evidence. Accordingly the board appeared to have left out of account a matter which should have been taken into account (the holiday-makers), and appeared to have taken into account a matter which should have been left out of account (unspecified and unsubstantiated detriment to the locality). The board's decision fell to be reduced on the ground of Wednesbury unreasonableness.

[5] Counsel further pointed out that, perhaps unsurprisingly in view of the total lack of evidence and material before the board, the board's reasons in relation to any alleged detriment to the locality were quite inadequate. This was a further aspect of the unreasonableness of the decision. Reference was made to Tomkins v City of Glasgow Licensing Board, 1994 S.L.T. 34, at p.37F-H; Singh v City of Glasgow Licensing Board, 1998 S.C. 830, at pp.831E-F, 833B-G.

Legitimate expectation

[6] Counsel also submitted that, on one view, the petitioner had a legitimate expectation that her application would be granted. She had been granted extensions from 2.30 p.m. to 6.30 p.m. on Sundays during 1996-97, 1998-99 and 1999-2000. Nevertheless under reference to the terms of ss.17(2) of the 1990 Act, counsel conceded that the grant of an extension was entirely discretionary, and that the relevant statutory provisions were framed differently from section 17 of the Licensing (Scotland) Act 1976 (which related to the original grant of a licence, and was framed in terms which suggested that a licence should always be granted unless certain contra-indications were made out). Reference was made to dicta in Bass Taverns Ltd. v Clydebank District Licensing Board, 1995 S.L.T. 1275.

Possible partial reduction

[7] Counsel pointed out that if the court were to take the view that the board had been entitled to take Sabbath observance into account in respect of both extensions sought, but had also been entitled to take the view that the applicant had not established a need in the locality in terms of section 47 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990, the petitioner was nevertheless entitled to reduction of the board's decision insofar as it related to the extension from 11 p.m. on Saturday to 1 a.m. on Sunday. The petitioner was entitled to such partial reduction because the board had failed to take into account and deal with the second reason advanced by the petitioner, namely catering for holiday-makers.

[8] Nevertheless counsel's position was that a need had been made out. Under reference to a definition of "need" in the Oxford English Dictionary ("7. Imperative call or demand for the presence, possession etc. of something") he submitted that, on a proper construction, section 47 refers to a demand by members of the public. The petitioner had established a need in the locality in that sense.

Respondents' submissions

[9] Counsel for the respondents invited the court to sustain the respondents' six pleas-in-law, and to dismiss the petition.

Natural justice

[10] Counsel accepted that the question of Sabbath observance had not been discussed at the hearing. However he submitted that the board were entitled to take into account their general knowledge and experience of the locality and the premises. Not all kinds of knowledge had to be ventilated at a hearing: cf. Risky Business Ltd v City of Glasgow Licensing Board, 2000 S.L.T. 923, Lord Prosser at p.926L, and 927 paragraph [16]; Caledonian Night Clubs Ltd. v Glasgow District Licensing Board, 1996 S.C. (H.L.) 29; 1996 S.L.T. 451. There was a distinction between general knowledge and specific factual information relating to the particular applicant or the particular licensed premises (for example, specific factual information as to whether the applicant was a fit person, or whether the premises were suitable or convenient for the sale of liquor): cf. Pagliocca v City of Glasgow District Licensing Board, 1995 S.L.T. 180. In the present case, the board had taken into account the religious, social and cultural circumstances of the locality. Such general knowledge or experience did not require specific disclosure at the hearing. An applicant would be aware that the board would have a body of general knowledge which they would be likely to bring to bear upon any application. It was accordingly for the applicant to ensure that he made such submissions as he thought appropriate. The applicant proceeded at his peril if he did not cover a particular point. In any event, having regard to the nature of the application, the applicant's views were predictable and would be of little assistance. The case of Tomkins v City of Glasgow District Licensing Board, 1994 S.L.T. 34, was distinguishable in that the board had specifically told the applicant that there was no need to deal with overprovision, but had eventually refused the application on the basis of overprovision. By contrast in the present case there had simply been no mention of Sabbath observance. There had been no breach of the principles of natural justice.

Wednesbury unreasonableness

[11] Counsel for the respondents submitted that while there had been no factual material before the board, other than the submission by the petitioner's agent and the board's general knowledge and experience, the board were nevertheless entitled to apply their knowledge and experience to the material placed before them by the applicant. In paragraph 10 of their Statement of Reasons, the board were drawing upon their own knowledge of Sabbath observance in the area. The board had regard to the practicalities of customers arriving and leaving the premises, and to the fact that there was a tradition and body of opinion about the practice of Sabbath observance. The case of Risky Business Ltd v City of Glasgow Licensing Board, 2000 S.L.T. 923 was quite different in that it was concerned with the actual physical consequences of the grant. In relation to the reasons given, following Wordie Property Co. Ltd. v Secretary of State for Scotland, 1984 S.L.T. 345, the reasons had to be such as to leave the informed reader and the court in no real and substantial doubt as to the reasons and material taken into account in reaching the decisions. The Statement of Reasons satisfied that test. Counsel confirmed that the respondents were not relying upon increased noise, increased traffic volume, overcrowding, or perceived crowd control problems or any similar matter. The reason given was simply that, in an area of Sabbath observance, the extension of hours would break the Sabbath.

Legitimate expectation

[12] Counsel submitted that there was no room for an argument based on legitimate expectation as defined in C.C.S.U. v Minister for Civil Service [1985] 1 A.C. 374. The board had to consider afresh each application for an extension of hours.

Partial reduction

[13] Counsel agreed that it was possible for the court to grant a partial reduction. In relation to "need", counsel submitted that the reasons advanced by the applicant and noted in paragraph 10 of the Statement of Reasons relating to the minibus service did not demonstrate a need. The extension of hours sought was not a necessary prerequisite for the operation of the minibus service. There was no need for a regular extension of hours from Saturday night into Sunday morning. While the issue of holiday-makers was not expressly mentioned in the Statement of Reasons, the board had weighed up all the competing considerations and were obviously not satisfied that need had been demonstrated. In any event the petitioner's principal argument had been based on the minibus service. The decision so far as relating to the extension from Saturday into Sunday should not be reduced.

Opinion

[14] I shall sustain the petitioner's first plea-in-law (numbered 6 in the petition), reduce the decision of the board dated 14 June 2000, and order that the respondents reconvene in order to reconsider the petitioner's application, for the following reasons:

[15] I am satisfied that there has been a breach of natural justice in that the petitioner was not given notice of the fact that observance of the Sabbath might be a live issue and possibly a determinative factor in the board's deliberations. Not only had the petitioner not been given such notice, but she was on one view justified in assuming that observance of the Sabbath was not a factor likely to prove adverse to her application, as she had been granted Sunday extensions in 1996-97, 1998-99, and 1999-2000.

[16] I accept that a board is entitled to apply its local knowledge and experience to material before it: Freeland v City of Glasgow District Licensing Board, 1979 S.C. 226, 1980 S.L.T. 101; Pagliocca v City of Glasgow District Licensing Board, 1995 S.L.T. 180, at p.182I-J; Risky Business Ltd. v City of Glasgow Licensing Board, 2000 S.L.T. 923. I also accept that it is the applicant's task to address the board on all the grounds upon which an application might be refused: Tomkins v. City of Glasgow District Licensing Board, 1994 S.L.T. 34. Nevertheless when dealing with a broad and wide-ranging ground such as detriment to the locality, which may incorporate many factors, it seems to me that if no particular aspect of alleged detriment has been focused, for example, by the lodging of objections, or by the board having expressed and made known their preferred policy on a certain matter (as occurred in Bass Taverns Ltd. v Clydebank District Licensing Board, 1995 S.L.T. 1275), the applicant may not know what aspect or aspects of amenity to address. The applicant has no means of knowing how many or how few factors to cover in the course of the hearing when seeking to persuade the board that there would be no detriment to the locality. It would in my view be contrary to natural justice for an applicant to have to guess what issues the board might have in mind, and then address the board fully on each one, with or without evidence, in the hope that he would thereby cover all relevant issues. In the absence of objections, and in the absence of clear intimation of a policy being adopted by the board, if the board have concerns or reservations about the extension sought, it would be consistent with natural justice for them to raise such concerns or reservations - at the latest, during the hearing itself - to enable the applicant to address them on those matters. As the Inner House observed in Freeland v City of Glasgow District Licensing Board, 1979 S.C. 226, 1980 S.L.T. 101:

"If there is some material fact which could influence the decision against an applicant or objector, it seems elementary justice to us that the applicant or objector should be told about it, so that he may have the opportunity of meeting or commenting upon it. We refer to the passage which we quoted earlier as a summary of the sheriff's decision ... All we are saying is that the rules of natural justice preclude a board from taking a decision against a party, be he applicant, objector or complainer, which is based, either wholly or partly, upon a fact or facts within the knowledge of the board, without disclosure of that fact or those facts to that party for his comments. We do not think that giving the opportunity to an applicant to answer the material facts which might result in a decision being given against him should unduly lengthen the proceedings. In any event, we consider it to be contrary to natural justice that a decision should be rendered without an applicant or objector being given that opportunity and, if that means difficulty in dealing with applications, it is the result of the provisions of the Act."

[17] Similarly Lord Prosser, in Risky Business Ltd. v City of Glasgow District Licensing Board, 2000 S.L.T. 923, commented at p.927D-E:

" ... issues of fairness ... may make it important to raise certain kinds of supposed [local] knowledge or [licensing] experience at a hearing, in order to give the opportunity of response ..."

[18] The raising of the board's concerns is all the more necessary where those concerns ultimately prove to be a determinative factor in the board's deliberations. If the board do not fully realise until after the hearing that certain issues which were not raised during the hearing might form a significant or material part of their decision, I consider it necessary for the board to intimate those issues to the applicant and to reconvene in order to hear the applicant's submissions thereon: cf. Tomkins v City of Glasgow District Licensing Board, 1994 S.L.T. 34, at p.37H-J.

[19] In relation to need in the locality, I agree with counsel for the petitioner that, on a proper construction, section 47 is wide enough to include demand by members of the public for extended hours. I am satisfied that the circumstances outlined in the application disclosed such demand in the locality of the hotel. The demand emerges when some customers, having enjoyed an evening in the licensed premises, have to wait at the hotel for a second or third trip by the minibus before being taken home. Customers might wish to indulge in some additional alcoholic drinks in the comfort of the licensed premises rather than changing to a non-alcoholic beverage, or waiting without a drink, or waiting in some other part of the hotel. I am satisfied therefore that a need had been made out in terms of section 47 in respect of the Saturday-into-Sunday extension.

[20] As the board's decision is to be reduced, and the application is to come before the reconvened board, I do not find it necessary or appropriate to express any views about Wednesbury unreasonableness. In relation to the question of legitimate expectation, I add obiter that I was not persuaded by the petitioner's argument. Standing the terms of sections 64 and 47, I consider that any extension of licensing hours has to be decided afresh each year, in the light of the circumstances then prevailing. The fact that an extension might have been granted in previous years does not give the petitioner any vested rights (cf. Bass Taverns Ltd. v Clydebank District Licensing Board, 1995 S.L.T. 1275), although as indicated above, it may be a relevant background factor when considering whether there has been any breach of natural justice.

[21] Accordingly I repel the respondents' first and second pleas-in-law, sustain the petitioner's first plea-in-law (numbered 6 in the petition) and grant reduction of the board's decision of 14 June 2000. I also order the board to reconvene within six weeks of the date of this judgement, to reconsider the petitioner's application.


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